Underfunded Mandate Reform: Are they serious, or are they just talking

Every year, the legislature looks at the question of unfunded and underfunded mandates imposed on local government, and this year is no exception. Next week, a legislative committee is scheduled to look at unfunded mandates in public education to see if something could be done to remove the financial burden that is breaking the backs of public school districts across the state. Each past year, however, despite the popular call for removing unfunded mandates, the State --Governor and Legislature--has done very little to reduce the unfunded mandate problem. In fact, the general sweep of the past decade, including even the current biennium, has been to add more underfunded and unfunded mandates, even while decrying them. At the bottom of this post I've provided examples of some of the major underfunded mandate requirements imposed at the state and national level. The list is not exhaustive. There are many more.

Now the underfunded mandate problem isn't simple to solve. Underfunded mandates arise for two major reasons. One reason is that there is a powerful interest group behind the underfunded mandate that is advocating for a costly solution to a real problem, but paying the cost for the new mandate will destroy the legislative majority needed to procure approval. Because there is no legislative requirement that an interest group advocate for funding to pay for the initiative, or even identify its cost, advocating for the mandate is more effective than advocating for the mandate and the funds. In fact, from the point of advocacy, if you are trying to get the legislature to approve something that is really important, the last thing in the world you would want to do is to tie your initiative to actually paying for it. Many very important initiatives have been successfully passed in this way. Mandate now. Figure out how to pay for it later.

Listen. The reason that unfunded mandates are so difficult to solve is that many mandate really good things with very powerful interest groups behind them. Often the interest groups are advocating for very important public-minded causes. Some mandates are designed to accomplish very important reforms that really need to be implemented. It is not always true that the solution to an unfunded mandate is to eliminate the mandate, although there are many where that is true. Often, the solution to the unfunded mandate problem is to fund it, or to make hard choices among mandates. So we need to acknowledge that the fact that the legislature mandates something is not always bad. The solution to good underfunded mandates is to appropriate the money to pay for it, or to make hard choices and reduce the cost of the mandate in some way.

The largest unfunded mandates in public education have very powerful interest groups important to legislators, and when we see legislators or the governor, talking about solving the unfunded mandate problem, usually they ignore these completely.

The second reason for unfunded mandates is that the governor and legislature have fallen into the habit of micro-manging public education. Partly, this is because the problems in education may seem so daunting, and the solutions so elusive, that its easier to work on little problems, rather than work on the big ones. Inherent in the legislative process is that in the months before session, legislators get calls and letters from constituents identifying something that they would like to change. One way to earn friends as a legislator is to introduce a bill to solve that particular problem.

Wouldn't it be fantastic if this year, something came of the resolve to deal with the underfunded and unfunded mandates problem in a meaningful way by focusing on the big ones, instead of the little ones. Here are a list of the underfunded mandates that really matter in Minnesota. And remember, some of these mandates are good mandates, or have a good purpose. But if we don't address the big ones, even though they have important public purposes, then we are evading the real conversation that needs to take place when addressing the underfunded mandate problem in education.

• Special Education: The total unfunded cost of special education in Minnesota is over one-billion per biennium. This is an example of an underfunded mandate that has a very important purpose. But if you claim that a mandate is important, then you prove your commitment to its importance by paying for it. The special education mandate includes a huge state imposed mandate that requires districts to provide services beyond the level required by federal law. In our district the cost of that extra mandate--beyond federal services mandate--has been estimated at one-million dollars per year. If the legislative review of underfunded mandates does not include special education, then that's a sure sign that the purpose of the review is politics, not solutions.
  

• Collective Bargaining and Labor Laws: This is another example of an underfunded mandate that has a very important purpose--assurance of decent pay for education professionals and other employees. But this year should prove that it is an underfunded mandate that is so powerful that it is driving school districts experiencing financial crisis to increase pay at a rate faster than legislative funding. Here is another mandate with the support of a powerful interest group. Paying teachers more is a good thing, but requiring districts to increase compensation costs faster than state funding increases is an unfunded mandate, and if the legislature wants to restore financial stability it needs to bring balance to this underfunded mandate by increasing the funding for labor settlements--which would have a positive impact on districts ability to attract and retain good teachers--or modify the mandate, so that it does not force school districts into financial failure.

• Educational Outcome Mandates: In the last two decades, state and federal law makers have fundamentally altered the mission of public education, as I have described in prior posts, from a system requiring school districts to offer a set curriculum and opportunities to succeed, to a system that mandates that school districts must guarantee success for all students. Here is another worthy mandate, but it is a mandate with a cost. Saying to a district that Johnny must have an opportunity to learn decimals, fractions, word problems and algebra is one thing. Saying to a district that if Johnny does not learn decimals, fractions and algebra, you have to do something to make Johnny learn them, no matter what his motivation, ability or interest, that is an entirely different mission. I've listed some of these mandates below. They have been passed for really good reasons. I don't disagree with the mandates. I just say that you cannot change the mission without assessing the cost.

Let me say this one more time. I am not advocating for removal of any of the mandates I've listed above. They are the big kahunas in the mandate world. If you aren't talking about them, you are just pretending. What I am advocating is that if you want to have a thorough, efficient and uniform public education system, you need to pay for them, or modify them.

• Minnesota Statutes Section 125A.03 provides that “every district must provide special instruction and services, either within the district or in another district, for all children with a disability,...... who are residents of the district and who are disabled as set forth in section 125A.02.” Under the statute, notwithstanding any age limits in laws to the contrary, special instruction and services must be provided from birth until July 1 after the child with a disability becomes 21 years old but shall not extend beyond secondary school or its equivalent, except as provided in section 124D.68, subdivision 2. Beginning in the school year 1999-2000 the State removed local levy support for special education and left school districts with hundreds of millions of dollars in shortfalls in special education, while failing to provide state funding to replace the lost local revenues. Currently the total special education mandate deficit--the difference between the state imposed special education requirement and the funds made available to meet this mandatory cost is about $500 million per year, or a billion dollars for a biennium, but over the next several years, the deficit is projected to rise to about $700 million per year.
• The Individuals With Disabilities Education Act (IDEA) requires that federal funds “…may not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from (state and) local funds below the level of those expenditures for the preceding fiscal year….” (34 C.F.R. § 300.203). This requirement is referred to as maintenance of effort (MOE). The MOE requirements are a form of anti-supplanting provision that penalizes school districts if they accept federal support for special education while reducing total expenditures on special education. The impact of these provisions is to prevent the School District from reducing its total expenditures on special education. In other words, except in unusual circumstances, school districts cannot lawfully cut their total expenditures on special education in order to eliminate deficit spending.
• The federal No Child Left Behind (NCLB) incorporated into state law by the legislature, requires states to develop plans to ensure that all students in all public schools are “proficient” in reading and math by the 2013-14 school year. NCLB sets an expectation that each student will meet or exceed the state's proficiency threshold by 2013-14, and it requires schools to make "adequate yearly progress" toward this goal. In 2004, the Office of Legislative Auditor predicted that absent significant changes, by 2014 from 80 percent to 100 percent of all public schools would fail to meet NCLB standards.
• Among the miscellaneous statutes now imposing legislative mandates or establishing the current definition of an adequate education are: Minnesota Statutes Section 120B.12 (passed 2001) (able to read by second grade); Section 120B.13 (advance placement or IB opportunities) Section 120B.132 (passed 2006) (early preparation to increase participation in advanced placement or IB opportunities); Section 120B.30 (passed and regularly enhanced from 1997-2007) (minimum requirements for passage of state proficiency testing); 120B.35 (passed and enhanced from 1998-2007) (Student Academic Achievement and Progress); Section 120B.021 (passed 2003) (required academic standards); Section 120B.22 (passed 2003) (District must establish its own elective standards for world languages and technology education); Section 120B.023 (benchmarks; revised curriculum standards); Chapter 125A (special education).
• In the last legislative session, the legislature passed a "maintenance of effort" requirement that prohibits school districts from reducing the number of counselors and other non-teaching licenced staff.